Wyckoff v. Birch

• Decision Date: 16 November 1908
• Citation: 76 N.J.L. 646,71 A. 243
• Parties: WYCKOFF v. BIRCH.
• Court: New Jersey Supreme Court

71 A. 243

76 N.J.L. 646

WYCKOFF

v. BIRCH.

Court of Errors and Appeals of New Jersey.

Nov. 16, 1908.

(Syllabus by the Court.)

Error to Supreme Court.

Action by Elizabeth Wyckoff, administratrix of the estate of Leroy Wyckoff, deceased, against Foster F. Birch. Judgment for plaintiff, and defendant brings error. Reversed.

J. L. Conard, George S. Hobart, and Gilbert Collins, for plaintiff in error.

Vreeland, King, Wilson & Lindabury, for defendant in error.

GARRISON, J. This writ of error brings up a judgment recovered by the defendant in error as plaintiff in the action brought in the court below to recover damages for the death of Leroy Wyckoff, which resulted from injuries received while working on a standpipe that was being erected by the defendant at Mt. Hope, Morris county. To a proper comprehension of the case in its legal aspects, an understanding of the exact nature of the work in which the plaintiff with other servants of the defendant was engaged at the time of the accident is essential. The stand-pipe in question, which was when completed to be a cylindrical column of sheet iron 80 feet in height by 20 feet in diameter, was constructed of metal sheets riveted together in a series of circular courses and superimposed on each other. Each sheet was three-eighths of an inch in thickness, eight feet in length, and five feet in height, so that allowing for overlapping a course or segment of the column consisted of eight of these sheets, which were riveted together before being brought to the standpipe and hoisted into position. After a course thus constructed had been hoisted into position, it was secured to the one next below it by rivets, its circular shape being restored and preserved in part in this way, but chiefly by a series of internal structural braces called "reaches" or "angle irons" that radiated like the spokes of a wheel from a small central iron pipe surmounted by a sort of iron hub called "a spider," which had eight short arms, to each of which an angle iron was bolted, so that it extended from the arm of the spider to the inner surface of the sheet-iron cylinder, where it was bolted into the under side of a horizontally projecting foot of a right angled lug, whose perpendicular part was held by two bolts to the inside of the cylinder or shell; these angle irons, being of uniform length and situated equi-distant from each other in the circumference of the shell, insured, when properly installed, its cylindrical form. In each section of the standpipe—that is, in every five feet of the ascending column —one of these permanent structural brace-works was constructed. When one course had been thus completed, the iron pipe in the center was raised five feet to correspond to the height of the next course, another spider was then placed on this new section of pipe, new lugs were bolted to the inner side of the new section of cylinder, near its top, to the horizontal feet of whose lugs were bolted new angle irons that were also bolted to the corresponding arms of the spider, and so on as the work progressed; the work on each course being done from a platform of planks that rested on the angle irons that thus formed part of the construction of the course next below it. The structural bracing thus constructed inside of each course which served the permanent purpose of strengthening the standpipe and securing its circular form performed also the temporary use of a scaffolding to support the platform, from which, after the first course, the work of construction had to be carried on. This iron scaffolding, if it may be so called, was therefore a permanent structure that supported the temporary platform in question. This platform consisted merely of two-inch spruce planks laid loose upon the angle irons, not fastened down, but movable as the exigencies of the work might require. There being eight of these angle irons in a circumference of 60 feet, it is evident that a piece of planking 12 feet long would rest upon three or upon four angle irons according to the distance between such plank and the ends of the angle irons. The length of the planks actually used is not given in the testimony otherwise than that they were of various lengths; but no complaint is made that they were not of sufficient length, or that they were otherwise of an improper character. The complaint is not that proper material for making the platform was not provided, but that the scaffolding—that is, the permanent iron structure—gave way.

The stage of the work at which this accident occurred and the manner of its causation as described by the plaintiff's witnesses was as follows: In order to make the pipe water tight, the two bolts that had during the progress of the work on a given course held the perpendicular part of each lug to the inner aspect of the last section of the shell were taken out, and replaced by metallic pins, which were firmly riveted. This was not done until the work on the newer section was otherwise completed, for the reason probably that the leverage on the angle irons caused by working upon the platform after the lugs that held the scaffolding had been riveted would loose the rivets, and render the pipe at such points liable to leakage. However that may be, the fact is that the replacing of the bolts with rivets was done just before transferring the planking from the old set of angle irons to the new set just above them. In this process of replacing the bolts with rivets there would be times when the lower end of the perpendicular part of the lug did not exactly parallel the inner surface of the shell, or where the hole in the lug and the corresponding one in the shell did not exactly align, so that the lug must either be forced into contact with the shell or moved laterally until an alignment of the holes was effected. It was at this stage of the work, and while engaged in this part of it, that the plaintiff's intestate met with the accident that caused his death. One of the lugs to be thus riveted was not in contact with the side of the shell, and Wyckoff and a fellow workman named Cole were engaged in forcing the bottom of this lug back against the shell so that it might be riveted. In doing this Wyckoff held a small hammer called "a set" against the lug,...